Florida Senate - 2014               CS for CS for SB's 130 & 122
       
       
        
       By the Committees on Criminal Justice; and Judiciary; and
       Senators Simmons, Smith, and Thompson
       
       
       
       
       591-02737-14                                           2014130c2
    1                        A bill to be entitled                      
    2         An act relating to the use of deadly force; amending
    3         ss. 30.60 and 166.0485, F.S.; requiring the county
    4         sheriff or municipal police department to issue
    5         reasonable guidelines for the operation of
    6         neighborhood crime watch programs; providing that the
    7         guidelines are subject to reasonable exceptions;
    8         amending s. 776.032, F.S.; providing that a person who
    9         is justified in using force is immune from criminal
   10         prosecution and civil action initiated by the person
   11         against whom the force was used; revising the
   12         definition of the term “criminal prosecution”;
   13         clarifying that a law enforcement agency retains the
   14         authority and duty to fully investigate the use of
   15         force upon which an immunity may be claimed; providing
   16         that during a pretrial immunity hearing, the state
   17         bears the burden of proving by a preponderance of the
   18         evidence that the defendant’s use of force was not
   19         lawful; amending s. 776.041, F.S.; providing that any
   20         reason, including immunity, used by an aggressor to
   21         justify the use of force is not available to the
   22         aggressor under specified circumstances; providing
   23         that provocation justifying the use of defensive force
   24         must include the use of force or the threat of the use
   25         of force; creating s. 776.09, F.S.; providing
   26         legislative intent relating to the justifiable use of
   27         force; providing an effective date.
   28          
   29  Be It Enacted by the Legislature of the State of Florida:
   30  
   31         Section 1. Section 30.60, Florida Statutes, is amended to
   32  read:
   33         30.60 Establishment of neighborhood crime watch programs.—
   34         (1) A county sheriff or municipal police department may
   35  establish neighborhood crime watch programs within the county or
   36  municipality. The participants of a neighborhood crime watch
   37  program shall include, but need not be limited to, residents of
   38  the county or municipality and owners of businesses located
   39  within the county or municipality.
   40         (2) The county sheriff or municipal police department shall
   41  issue reasonable guidelines for the operation of such programs.
   42  The guidelines must include, but are not limited to, prohibiting
   43  a neighborhood crime watch patrol participant, while on patrol,
   44  from confronting or attempting to apprehend a person suspected
   45  of improper or unlawful activity, subject, however, to those
   46  circumstances in which a reasonable person would be permitted,
   47  authorized, or expected to assist another person.
   48         Section 2. Section 166.0485, Florida Statutes, is amended
   49  to read:
   50         166.0485 Establishment of neighborhood crime watch
   51  programs.—
   52         (1) A county sheriff or municipal police department may
   53  establish neighborhood crime watch programs within the county or
   54  municipality. The participants of a neighborhood crime watch
   55  program shall include, but need not be limited to, residents of
   56  the county or municipality and owners of businesses located
   57  within the county or municipality.
   58         (2) The county sheriff or municipal police department shall
   59  issue reasonable guidelines for the operation of such programs.
   60  The guidelines must include, but are not limited to, prohibiting
   61  a neighborhood crime watch patrol participant, while on patrol,
   62  from confronting or attempting to apprehend a person suspected
   63  of improper or unlawful activity, subject, however, to those
   64  circumstances in which a reasonable person would be permitted,
   65  authorized, or expected to assist another person.
   66         Section 3. Present subsection (1) of section 776.032,
   67  Florida Statutes, is amended, subsections (2) and (3) are
   68  renumbered as subsections (3) and (4), respectively, and a new
   69  subsection (2) is added to that section, to read:
   70         776.032 Immunity from criminal prosecution and civil action
   71  for justifiable use of force.—
   72         (1) A person who uses force as permitted in s. 776.012, s.
   73  776.013, or s. 776.031 is justified in using such force and is
   74  immune from criminal prosecution and civil action by the person,
   75  personal representative, or heirs of the person, against whom
   76  force was used for the use of such force, unless the person
   77  against whom force was used is a law enforcement officer, as
   78  defined in s. 943.10(14), who was acting in the performance of
   79  his or her official duties and the officer identified himself or
   80  herself in accordance with any applicable law or the person
   81  using force knew or reasonably should have known that the person
   82  was a law enforcement officer. As used in this subsection, the
   83  term “criminal prosecution” includes arresting, taking into
   84  custody, or arresting, detaining in custody, and charging or
   85  prosecuting the defendant. This subsection does not restrict a
   86  law enforcement agency’s authority and duty to fully and
   87  completely investigate the use of force upon which an immunity
   88  may be claimed or any event surrounding such use of force.
   89         (2) A defendant is entitled to an evidentiary hearing on a
   90  pretrial motion to dismiss an indictment or information by
   91  making a prima facie showing of the justifiable use of force.
   92  During the hearing, the state bears the burden of proving by a
   93  preponderance of the evidence that the defendant’s use of force
   94  was not lawful. For purposes of the motion, the judge shall
   95  decide all factual disputes relating to the defendant’s use of
   96  force, but any factual findings are not established for the
   97  purposes of any subsequent trial. The defendant’s testimony is
   98  not admissible in a subsequent hearing or trial except for the
   99  purposes of impeachment. The denial of the defendant’s motion to
  100  dismiss or any factual findings at the hearing do not preclude
  101  the defendant from raising any defense or presenting any
  102  evidence at trial.
  103         Section 4. Section 776.041, Florida Statutes, is amended to
  104  read:
  105         776.041 Use of force by aggressor.—The justifications
  106  justification described in the preceding sections of this
  107  chapter, including, but not limited to, the immunity provided
  108  for in s. 776.032, are is not available to a person who:
  109         (1) Is attempting to commit, committing, or escaping after
  110  the commission of, a forcible felony; or
  111         (2) Initially provokes the use of force against himself or
  112  herself, unless:
  113         (a) Such force is so great that the person reasonably
  114  believes that he or she is in imminent danger of death or great
  115  bodily harm and that he or she has exhausted every reasonable
  116  means to escape such danger other than the use of force which is
  117  likely to cause death or great bodily harm to the assailant; or
  118         (b) In good faith, the person withdraws from physical
  119  contact with the assailant and indicates clearly to the
  120  assailant that he or she desires to withdraw and terminate the
  121  use of force, but the assailant continues or resumes the use of
  122  force.
  123  
  124  For purposes of this subsection, provocation must include the
  125  use of force or threat of force.
  126         Section 5. Section 776.09, Florida Statutes, is created to
  127  read:
  128         776.09 Justifiable use of force; legislative intent.—The
  129  use of force authorized by this chapter is not intended to
  130  encourage vigilantism or acts of revenge, authorize the
  131  initiation of a confrontation as a pretext to respond with
  132  deadly force, or negate a duty to retreat for persons engaged in
  133  unlawful mutual combat.
  134         Section 6. This act shall take effect October 1, 2014.